The rights of every man are diminished when the rights of one man are threatened John F. Kennedy
The saying very prominently reflects the one significant thread that encompasses the entire human race, that is the right to live a dignified life, which also incorporates the right to privacy. Through a historic judgement, fighting contrary opinions, India stood firm for its citizens’ right to privacy and declared it as a fundamental right on August 24, 2017. However, it is rather astonishing that it took India 70 years of Independence to constitutionally implement this integral element of freedom, i.e. the right to privacy, for its citizens.
For the first time, the right to privacy was widely debated upon by the citizens when the Aadhaar enrolment and linkage was made compulsory by the interim Supreme Court’s order of September 23rd, 2013. The Aadhaar project was initiated in the year 2009, but it was voluntary in nature until the government-initiated series of actions to imply it. The Aadhaar enrolment was initiated to identify Indian citizens and to eliminate duplicate and fake identities. However, with the widescale application of the project, it began to be used for disbursement of financial subsidies and benefits i.e. welfare facilities and also for non-welfare activities like opening of bank accounts, filing of taxes, etc. To the extent of linking Aadhaar for non-welfare activities, nothing seemed to create any ripple, however when it was made compulsory for welfare subsidies like for LPG, pensions for already existing beneficiaries, etc, it triggered massive outrage.
Numerous petitions were filed wherein the petitions challenged the Aadhaar card project, with its bio-metric registration process and linkage to basic and essential subsidies, as a violation of the citizens’ right to privacy. The Supreme Court of India, in March 2017, held that there is no fault with the Government’s choice to make Aadhaar mandatory for ‘non-welfare’ activities like opening a bank account or filing Income tax returns or applying for a mobile connection. This ruling gives leverage to Lok Sabha’s recently-passed Finance Bill that made Aadhaar mandatory for filing tax returns and getting a permanent account number. Again in May 2017, a fresh debate triggered when the government made Aadhaar mandatory to access welfare schemes and benefits after June 30, 2017. Simultaneously, a newly inserted Section 139A in the Income Tax Act, mandates the linking of Aadhaar with PAN, further increasing anxiety of the citizens of the nation.
The series of events triggered significant questions about violation of the right to privacy which was just the tip of the iceberg. The entire debate on privacy started with questions of denial or inconveniences of enrolling and linking Aadhaar and data leakage. Questions were raised on how secure was the data made available to government in the absence of a national data protection policy. Moreover, it is crucial to infer that prior to these petitions, in both the cases i.e. the MP Sharma case of 1954 and the Kharak Singh case of 1962, the petitioners had sought protection under the Right to Privacy. Thus, the Right to Privacy was discussed only in the light of it being used as a tool of protection against criminal proceedings by under trial civilians and not for the common citizens at large. So, the very assumption that it should not be considered fundamental, primarily lies on cases that were not generic but citizen specific and this cannot be the criteria for deciding whether right to privacy is fundamental or not. Coming to the most essential question on the privacy fiasco, is privacy a fundamental right and if not, should it be? Privacy is about power dynamics between the individual, the state and the market as well as one’s autonomy, dignity and self-determination. It’s about empowerment, and control of one’s own information and the way personal data is getting used beyond one’s knowledge and consent. The very fact that identity can become a potential tool of control and exclusion certainly validates questions around exclusion and discrimination, particularly against already vulnerable or marginalised communities. Cases of misuse of data by government agencies during police investigations, by private players for target marketing and by individuals for data selling are very common across the globe. These issues certainly make it clear that the right to privacy is indispensable for a secured, dignified life. As far as the question of it being fundamental or not is concerned, it is essential to recognize and understand the fact that when a right is basic yet not secured constitutionally, it leaves scope of future annulment of the guaranteed right under various unpredictable circumstances. Hence, to secure a basic right, making it fundamental is not only essential but intrinsic aspect of a dignified human life.
Subsequently, the Supreme court on 24th August 2017, declared right to privacy a fundamental right because it is ‘intrinsic to life and liberty’ and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution. The aspect that still requires the attention of the legislatives are the implementation of the Data Protection Bill on the recommendations of B.N. Srikrishna Committee, to further strengthen data protection and security, in the absence of which right to privacy will remain a right on papers. Also, the grey areas must spark public and parliamentary debate before a final legislation comes to realization. Though it is true that rights of citizens must be respected, but unaware citizens will hardly have an option to exercise their rights. Thus, it is essential that citizens are widely made aware of data theft, data protection and security to avoid data misuse.